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ORDINANCE OF 1787. 



PRESENTED TO THE PUBLICATION FUND. 



By a Resolution of the Society, any one who shall pay to its Treasurer twenty dol- 
lars, obtains the right to receive, during life, one copy of each publication. 
Amount of Fund $11,500. » 



HISTORY 



ORDINANCE OF 1787. 



BY 
EDWARD COLES, 

F0R5IERLY GOVERNOR OF THE STATE OF ILLINOIS ; 
BIEMBER OF THE HISTORICAL SOCIETY OF PENNSYLVANIA. 



READ BEFORE 



THE HISTORICAL SOCIETY OF PENNSYLVANIA, 



June 9, 1856. 






**•:. 



PRESS OF THE SOCIETY. 

1856. 



Entered according to the Act of Congress, in the year 1856, by the 

HISTORICAL SOCIETY OF PENNSYLVANIA, 

in the office of the Clerk of the District Court of the United States in and for the 
Eastern District of Pennsylvania. 



C^ 









PHILADELPHIA: 
T. K. ASD P. G. COLLINS, PRINTERS. 



June 9, 1856. 

At a meeting of the Historical Society, held this evening, it was, 
on motion of William M. Meredith, unanimously 

Resolved, That the Secretary be directed to convey to Edward 
Coles the thanks of the Society for his valuable Historical Sketch of 
the "Ordinance of 1787," prepared by him at their request, and read 
this evening ; and that the author be requested to furnish a copy of 
the same for preservation in the archives of the Society, and for 
publication. 

Extract from the minutes. 

FRANK M. ETTING, 

Rec. Secretary. 



ORDINANCE OF 1787. 



TO THE HISTORICAL SOCIETY OF PENNSYLVANIA. 

I am sensible of the compliment paid me by the pas- 
sage of the Resolution of the Society, requesting me to 
prepare for it an historical sketch of the celebrated 
Ordinance of 1787. and regret that sedentary occupation, 
and particularly the labor of the pen, being prejudicial 
to my health, will prevent my making such a response 
to the call as the highly interesting character of the 
subject requires, or fulfilling the expectations doubtlessly 
entertained by the Society when the resolution was 
adopted. This state of things will disable me from 
making the researches necessary to a full exposition of 
facts, or even writing out my recollections of them to the 
extent desired. It will require me to economize my 
labors in every way I can, and particularly the preju- 
dicial one of writing, and content myself with develop- 
ing only such facts as are essential to understanding 
the history of the Ordinance. To this I must add, 
as a further barrier to my doing justice to the subject, 
that I cannot procure, here, a history of Indiana, or in- 
deed anything that deserves that name of any of the 
subdivisions into which the Northwestern Territory 
was divided; which compels me to rely mainly for local 
facts on my memory and personal memoranda. With 
this explanation, I will proceed at once to comply with 
the request of the Historical Society of Pennsylvania. 



6 THE HISTORY OF 

The country situated to the northwest of the Ohio 
River, long known as the Northwestern Territory, 
w T as claimed by Virginia, except a small part of it 
bordering on Lake Erie, which was claimed by Con- 
necticut. These two States ceded all their claims to the 
United States, and thus they obtained a perfect title to 
the whole. The deed of cession from Virginia was 
dated March 1, 1784; and was signed, among others, by 
Jefferson and Monroe, afterwards Presidents of the 
United States. It ceded all her right and title to the 
soil and jurisdiction to the United States, and made 
many stipulations ; among others, " That the French 
and Canadian inhabitants and other settlers of the Kas- 
kaskias, St. Vincents, and the neighboring villages, 
who have professed themselves citizens of Virginia, 
shall have their possessions and titles confirmed to 
them, and be protected in the enjoyment of their rights 
and liberties." It also reserved 150,000 acres of land 
near the rapids of the Ohio for that portion of her State 
troops which had reduced the country, and about 
3,500,000 acres of land between the rivers Scioto and 
Little Miami for bounties to her troops on the " Conti- 
nental Establishment." These facts are mentioned, and 
should be borne in mind, as they will be shown to have 
an influence in forming the opinions and explaining 
the conduct of a portion of the inhabitants under the 
operation of the Ordinance. In consequence of the 
objectionable stipulations made by Virginia, as to the 
divisions of the territory into States, the deed of cession 
was referred back to that State, with a recommendation 
from Congress, that these stipulations should be altered. 
On December 30, 1788, Virginia assented to the wish 
of Congress, and formally ratified and confirmed the 
fifth article of compact, which related to this subject, 
and tacitly gave her assent to the whole ordinance of 



THE OKDINANCE OF 1787. 7 

1787. A few clays after the execution of the deed of 
cession by Virginia, at the instance of Mr. Jefferson, a 
committee was raised, consisting of Thomas Jefferson, 
of Va., Samuel Chase, of Maryland, and David Howell, 
of Rhode Island, for the purpose of organizing and pro- 
viding for the Government of the newly acquired terri- 
tory. Mr. Jefferson, as chairman of the committee, 
made a report, now to he seen in his handwriting 
among the archives of Congress in the Department of 
State at Washington. It provides, " that the territory 
ceded or to he ceded by individual States to the United 
States," " shall be formed into distinct States," the 
names of which were given, and the boundaries defined ; 
and the divisions thus made contemplated and embraced 
all the western territory lying between the Florida 
and Canada lines. That is, it included the territory 
which had been " ceded" to the northwest of the 
Ohio River, and that " to be ceded" to the south- 
west of that River, or elsewhere, by individual States 
to the United States. It also provided for a temporary 
or Territorial Government; authorized the adoption of 
the laws of any other State : to have a representative 
on the floor of Congress, with the right of debating but 
not of voting, &c. &c, until the inhabitants should 
amount to 20,000, after which it authorized the forma- 
tion of a permanent or State government ; and for its 
admission into the Union : Provided both the Terri- 
torial and State Governments should be established on 
the following principle as a basis, which were declared 
to be articles of a charter of compact, to stand as funda- 
mental constitutions between the thirteen original 
States and the new States to be formed, unalterable 
but by the joint consent of the United States, and the 
particular State with which such alteration was pro- 
posed to be made: 1st. That they shall forever remain 



b> THE HISTOEY OF 

a part of the United States of America. 2d. That in 
their persons, property, and territory, they shall be 
subject to the Government of the United States in 
Congress assembled, and to the articles of confederation 
in all those cases in which the original States shall be 
so subject. 3d. That they shall be subject to pay a 
part of the Federal Debt, contracted or to be contracted, 
to be apportioned on them by Congress according to 
the same common rule and measure by which apportion- 
ment thereof shall be made on the other States. 4th. 
That their respective Governments shall be republican in 
form, and shall admit no person to be a citizen who holds 
any hereditary title. 5th. That after the year 1800 of 
the Christian era, there shall be neither slavery nor in- 
voluntary servitude in any of the said States, otherwise 
than in punishment of crimes whereof the party shall 
have been duly convicted to have been personally guilty. 

Before proceeding further in making references and 
quotations, I must inform those who have not had 
occasion to examine the Journals of the Old Congress, 
that they are so imperfectly made out, with so many 
omissions, that it is impossible to trace the proceedings, 
and fully to understand what took place in forming the 
Ordinance or any other measure of the kind. It may 
also be well to state, in order to enable all to under- 
stand the Journals, that the Old Congress, under the 
Articles of Confederation, voted by States; that to 
entitle a State to vote it must have at least two mem- 
bers present; and that for the adoption of a measure, at 
least seven States (the majority of the whole number of 
the thirteen States) must vote in favor of it : indeed in 
some important cases nine States w 7 ere required. 

Previous proceedings are to be inferred from the fol- 
lowing entry in the Journals, though I have not been 
able to find them. April 19, 1784, " Congress took 



THE OKDIXANCE OF 1787. 9 

into consideration the report of a committee consisting 
of Mr. Jefferson, Mr. Chase, and Mr. Howell, to whom 
was recommitted their report of a plan for a temporary 
Government of the Western Territory ; when a motion 
was made by Mr. Spaight, seconded by Mr. Read, to 
strike out the following paragraph: 'That after the 
year 1800 of the Christian era there shall be neither 
slavery nor involuntary servitude in any of the said 
States, otherwise than in punishment of crimes whereof 
the party shall have been convicted to have been per- 
sonally guilty.' And on the question, shall the words, 
moved to be struck out, stand. The yeas and nays being 
required by Mr. Howell : 

Neiv Hampshire — Mr. Foster, ay ; Mr. Blanchard, ay . Ay. 

Massachusetts — Mr. Gerry, ay; Mr. Partridge, ay . Ay. 

Connecticut — Mr. Sherman, ay; Mr. Wadsworth, ay . Ay. 

New York — Mr. De Witt, ay ; Mr. Paine, ay . . Ay. 

Rhode Island — Mr. Ellery, ay ; Mr. Howell, ay . . Ay. 

New Jersey — Mr. Dick, ay 

Pennsylvania — Mr. Mifflin, ay ; Mr. Montgomery, ay ; 

Mr. Handy, ay Ay. 

Maryland — Mr. McHenry, no; Mr. Stone, no . . No. 

Virginia — Mr. Jefferson, ay ; Mr. Hardy, no; Mr. Mer- 
cer, no ........ No. 

North Carolina — Mr. Spaight, no; Mr. Williamson, ay Divided. 

South Carolina — Mr. Read, no ; Mr. Beresford, no . No. 

So the question was lost and the words were struck 
out." 

That is, although there were six States in favor of 
retaining the clause, out of the ten States that voted, it 
was nevertheless struck out, because there was wanted 
the vote of one more State to make a majority of all the 
States then in the confederation. 

Congress resumed the consideration of the plan of the 
Government of the Territories, from day to day, until 
April 23, 1784, when it was agreed to, as amended, 



10 THE HISTORY OF 

with the concurrence of every State (except Delaware 
and Georgia, not represented), and of every member of 
Congress except the two from South Carolina. 

The plan of Government thus adopted by Con- 
gress was founded on one reported by Mr. Jefferson, 
with some alterations. The chief of these consisted in 
striking out the clauses prohibiting slavery, as seen 
above, inhibiting citizens from holding any hereditary 
title, and giving names and boundaries to the new 
States ; and also in adding to the fundamental articles of 
compact, as drawn by Mr. Jefferson, that the new States 
should in no case interfere with the primary disposal of 
the soil by the United States, that no tax should be 
imposed on lands the property of the United States, 
and that the lands of non-residents were never to be 
taxed higher than the lands of residents. With these 
exceptions, the plan adopted by Congress, April 23, 1784, 
was substantially the same, and for the most part, in 
the words of the one submitted to Congress by Mr. Jef- 
ferson. Fourteen days after its passage, viz : May 7, 

1784, Mr. Jefferson was appointed minister to France 
and vacated his seat in Congress. 

The next notice of the subject I have been able to 
find in the journals of Congress, is on the 16th of March, 

1785, when "a motion was made by Mr. King, seconded 
by Mr. Ellery, that the following proposition be com- 
mitted : that there shall be neither slavery nor involun- 
tary servitude in any of the States described in the 
resolve of Congress of the 23d of April, 1784, other- 
wise than in punishment of crimes whereof the party 
shall have been personally guilty ; and that this regula- 
tion be an article of compact, and remain a fundamental 
principle of the Constitutions between the thirteen origi- 
nal States and each of the States described in the said 
resolve of the 23d of April, 1784." 



THE ORDINANCE OF 1787. 11 

On the question for commitment, the yeas and nays 
being required by Mr. King, eight States, viz : New 
Hampshire, Massachusetts, Rhode Island, Connecticut, 
New York, New Jersey, Pennsylvania, and Maryland 
voted in the affirmative; and three States, viz: Virginia, 
North Carolina, and South Carolina voted in the nega- 
tive. Georgia had but one member present, and of course, 
her vote was not counted. To what committee this 
motion was referred, or what further was done on the 
subject is not stated in the journal. 

On the 7th of July, 1786, this entry is made: " Con- 
gress took into consideration a report of a grand com- 
mittee, to whom, among other things, was referred a 
motion of Mr. Monroe respecting the cession of Western 
Territory, and forming the same into States;" when it was 
" resolved that it be and is hereby recommended to the 
Legislature of Virginia, to take into consideration their 
act of cession, and revise the same, so far as to make 
such a division of the territory of the United States 
lying northwardly and westwardly of the river Ohio, 
into distinct and republican States, not more than five 
nor less than three," &c. 

The next entry in the journal which has reference to 
the subject is under date of September 29, 1786, when. 
" Congress proceeded in the consideration of an Ordi- 
nance for the government of the Western Territory, 
reported by Mr. Johnson, Mr. Pinckney, Mr. Smith, Mr. 
Dane, and Mr. Henry." On the 4th of October follow- 
ing, " Congress resumed the consideration of the Ordi- 
nance for the government of the Western Territorv.' 
On May 9, 1787, " Congress proceeded in the second 
reading of the Ordinance for the government of the 
Western Territory." On May 10, 1787, the third read- 
ing was postponed. On July 11, 1787, " the committee 
consisting of Mr. Carrington, Mr. Dane, Mr. P. H. Lee, 



12 THE HISTORY OF 

Mr. Kean, and Mr. Smith, to whom was referred the 
report of a committee touching the temporary govern- 
ment of the Western Territory, reported an Ordinance 
for the government of the Territory of the United States 
northwest of the river Ohio ; which was read a first 
time." 

The next day it was read a second time, and the day 
following, July 13, 1787, it was read a third time and 
passed by the following vote : " the yeas and nays being- 
required by Mr. Yates. 

Massachusetts — Mr. Holton, ay ; Mr. Dane, ay . . Ay. 

Neio York — Mr. Smith, ay; Mr. Haring, ay ; Mr. Yates, no Ay. 

New Jersey — Mr. Clarke, ay; M. Scneurnian, ay , . Ay. 

Delaioare — Mr. Kearney, ay ; Mr. Mitchell, ay . . Ay. 
Virginia — Mr. Grayson, ay; Mr. R. H. Lee, ay; Mr. 

Carrington, ay ....... . Ay. 

North Carolina — Mr. Blount, ay ; Mr. Hawkins, ay . Ay. 

South Carolina — Mr. Kean, ay; Mr. Huger, ay . . Ay. 

Georgia — Mr. Few, ay ; Mr. Pierce, ay Ay. 

So it was resolved in the affirmative." 

The Ordinance as it thus finally passed Congress with 
such extraordinary unanimity, first provides rules for 
the inheritance and conveyance of property ; it then 
provides for the appointment of the Governor, Judges, 
and other officers of the temporary or territorial govern- 
ments, and defines their powers and duties ; it also pro- 
vides for the election of a delegate to Congress, to have 
the right of debate but not of voting during the tempo- 
rary government. It then goes on to say, " for extend- 
ing the fundamental principles of civil and religious 
liberty," &c. " It is hereby ordained and declared, by the 
authority aforesaid, that the following articles shall be 
considered as articles of compact between the original 
States, and the people and States in the said territory, 
and forever remain unalterable unless by common con- 



THE ORDINANCE OF 1787. 13 

sent." Of these the first article secures the religious 
freedom of the inhabitants: the second secures to them 
the right of the writ of habeas corpus, the trial by jury, 
the inviolability of contracts, &c. : the third declares 
that schools and the means of education shall be en- 
couraged, and good faith shall be observed towards the 
Indians : the fourth provides that the Territories shall 
remain forever a part of the United States ; pay their 
just proportion of the Federal debts and expenses ; not 
interfere with the primary disposal of the soil by the 
United States, nor tax non-resident proprietors higher 
than residents ; and that the navigable waters leading 
into the Mississippi and St. Lawrence rivers, and the 
carrying places between the same, shall be common 
highways and forever free to all the citizens of the United 
States : the fifth provides for a division of the Territory 
into States and their admission into the Union when 
they shall have 60,000 inhabitants, on an equal footing 
with the other States, provided their constitutions be 
republican; and the sixth ordains that there shall 
neither be slavery nor involuntary servitude in the said 
Territory, otherwise than in the punishment of crimes 
whereof the party shall have been duly convicted : Pro- 
vided always that any person escaping into the same 
from whom labor or service is lawfully claimed in any 
one of the original States, such fugitive may be lawfully 
reclaimed and conveyed to the person claiming his or 
her labor or services as aforesaid. There is then added 
a repeal of the resolutions of April 23, 1784. 

A comparison of the plan of government, as drawn 
by Mr. Jefferson, and that finally adopted by Congress, 
both of which I have endeavored briefly to sketch, will 
show — 1st. That with Mr. Jefferson, originated the idea 
of a compact between the original States and the new 
States to be formed out of the territories, unalterable 



14 THE HISTORY OF 

but by their joint consent. 2nd. That his plan of go- 
vernment or ordinance was intended to apply to all ter- 
ritory, ceded or to be ceded by individual States to the 
United States ; while the ordinance passed by Congress 
confined it to territory previously acquired — that is to 
the territory northwest of the river Ohio. 3d. That 
by Mr. Jefferson's plan or ordinance the territory was 
to be formed into distinct States, whose names and 
boundaries were designated; with a provision that they 
might form a temporary government ; adopt the consti- 
tution and laws of any one of the original States, such 
laws being, however, subject to alteration by themselves; 
have a representation in Congress, though without a 
vote ; and when they should have 20,000 inhabitants, 
form a permanent State government, and be admitted into 
the Union, on an equal footing with the original States — 
all which provisions were those which formed substan- 
tially the ordinance as finally adopted by Congress, 
though it was so far qualified, that a State could not 
claim a right of admission into the Union until it had 
60,000 inhabitants ; to which were added in more de- 
tail the form of territorial government and some specific 
regulations in regard to the inheritance and conveyance 
of property. 4th. That to the provisions which Mr. 
Jefferson originated and inserted in his plan, making it 
a matter of compact that the new States should forever 
remain part of the United States; be subject to the go- 
vernment of Congress, and the articles of confederation ; 
bear their share of the federal debts ; adhere to a re- 
publican form of government, and admit no one to citi- 
zenship who should hold an hereditary title — to these 
the Ordinance as adopted by Congress added provisions 
to protect the public lands from interference and taxa- 
tion ; to preserve as highways some of the great rivers ; 
and to enlarge the enumeration of the personal rights 



THE ORDINANCE OF 1787. 15 

of the citizen. 5th. That the most important clause in 
Mr. Jefferson's plan — that which provided that " after 
the year 1800 of the Christian era there should be 
neither slavery, nor involuntary servitude, in any of the 
said States, otherwise than in punishment of crimes, 
whereof the party shall have been duly convicted to 
have been personally guilty" — was adopted by Congress 
with no change, except the omission of the postponement 
of its operation until 1800, and the introduction of the 
clause for the restoration of fugitive slaves. 

Some of the above particulars would not have been 
stated so fully but for a claim which has been made to 
the authorship of the ordinance on behalf of Nathan Dane, 
of Massachusetts. To show a misconception somewhere, 
and in a word, the groundless character of this claim, it 
is only necessary to state that Mr. Dane took his seat in 
Congress for the first time, on the 17th of November, 
1785, more than eighteen months after the ordinance 
had been conceived and brought forth by its great au- 
thor, and been adopted by Congress, with certain alter- 
ations, the principal one of which, on motion of Mr. 
King, had been in effect cancelled and the original pro- 
vision restored nearly in the words of Mr. Jefferson, 
eight months before Mr. Dane took his seat in Con- 
gress. The Journals of Congress do not show that Mr. 
Dane had any particular part in forming the ordi- 
nance, beyond serving on two of the several committees 
to which it was referred. What he did on those com- 
mittees, I have no means of knowing. He may have 
been active and instrumental in working into the ordi- 
nance his favorite provisions about titles to property ; 
and thus his phrase may be rendered intelligible, where 
he says that he had "formed it mainly from the laws of 
Massachusetts." 

Having given this sketch of the origin and formation 



16 THE HISTORY OF 

of the ordinance, I will now trace the history of its 
practical operation, to which I will add, the local op- 
position it encountered, and the general assent and 
sanction it received from Congress and from the Union. 
To form a correct idea of what passed in relation to 
the ordinance, it is necessary to recall to mind the 
efforts made by France to encompass and restrict the 
western frontiers of the English Colonies, by establish- 
ing a cordon of forts with surrounding settlements con- 
necting its colonies of Louisiana and Canada ; and that 
France claimed and occupied much of the territory to 
the eastward of the Mississippi River, prior to 1763, 
when it was ceded to England ; after which it formed 
parts of the English slave-holding colonies. When these 
facts are considered, it will not excite surprise that the 
inhabitants of the settlements, thus formed and governed, 
should have been favorable to the existence of slavery, 
as it was established by the French laws of Louisiana, 
and by the laws of the English Colonies to which the 
country east of the Mississippi River became attached 
by .the cession of France in 1763. From the first settle- 
ment, therefore, by the white race, of the country north- 
west of the Ohio River, by the French at and in the 
vicinity of Kaskaskia, about the year 1682, and by a 
company of emigrants from Virginia about one hundred 
j years subsequently, slavery had existed, and was as law- 
i fully established as it had been under the laws of Loui- 
1 siana or of those of Virginia. It was the knowledge of 
this existence of slavery, and his known opinion in favor 
of a prospective rather than a sudden abolition, that in- 
duced Mr. Jefferson to use the phrase he did in the 
ordinance — " That after the year 1800 of the Christian 
era there shall be neither slavery nor involuntary servi- 
tude in any of the said States, &c." This provision 
recognized the existence of slavery, and contemplated 



THE ORDINANCE OF 1787. 17 

the toleration of it in those States for sixteen years (he 
drew the ordinance in 1784), when it was to cease. 
From this it is clearly seen that the illustrious author 
of the ordinance intended it to abolish the then existing 
state of slavery, as well as to prohibit its ever being 
tolerated in the country northwest of the Ohio River. 

To these reasons for the existence then of negro slavery, 
may be added the fact of Virginia having granted land 
to many of her citizens who had served in the wars 
carried on against the Indians, and in this way having 
had opportunities of seeing the country to the north- 
west of the Ohio, and being pleased with it, they settled 
on the lands thus granted to them. In this way the 
first settlers, both of French and English descent, were 
from slaveholding colonies, and the laws of those colo- 
nies having been extended to, and being in full opera- 
tion at the time of the adoption of the ordinance, it was 
to have been expected that its provision for the prohi- 
bition of slavery would not be popular with many of 
them. These feelings of disapprobation at once evinced 
themselves by the larger and more intelligent slave- 
holders removing across the river into Louisiana, and 
taking with them their slaves, to prevent their being 
emancipated by the Ordinance. The poorer and less in- 
telligent masters, each owning but a very few slaves, 
being ignorant of the English language and laws, and 
being also cut off from a knowledge of passing events, 
by there being then no mails running to their remote 
settlements, continued to hold and to treat their late 
slaves as if the Ordinance had not emancipated them. 
This state of things continued for a long time, in conse- 
quence of the ignorance of the negroes of the English 
language and of the mode of obtaining their rights, and 
from the fear of punishment if they attempted it, and 
also, from the odium which attached to those who should 
2 



18 THE HISTORY OF 

aid them. To this should be added, that many of the 
officers in whose hands the law had placed the power, 
were themselves claimants of the negro services, and 
interested in continuing the then existing state of things. 
The long and extraordinary acquiescence in the contin- 
uance of the bondage of the French slaves (as they were 
called) encouraged those who can always find reasons 
for doing what will promote their own immediate in- 
terest, or what they like to do, to set up a right to the 
French negroes' services ; some contending for it under 
the treaty of 1763, and some under the terms of cession 
from Virginia. 

But it is useless to expose or dwell longer on the 
errors of these prejudiced and interested partisans. It 
is enough to confute and silence them, to recite the 
facts that the highest judicial tribunals of individual 
States and of the Federal Government, have decided 
and put the question at rest, that slaves cannot be law- 
fully held in the country northwest of the Ohio River. 
At an early period, it was so decided by the Supreme 
Court of Indiana ; afterwards, a similar decision was 
made by the Supreme Courts of Missouri and Illinois ; 
and in 1831 these decisions were concurred in and con- 
firmed by the highest judicial authority of the United 
States. A doubt can no longer exist, that such a de- 
cision would have been made at any, even the earliest 
period after the adoption of the ordinance, if the ques- 
tion had been brought before the judiciary. Of course, 
the continuance of the remnant of French slaves for 
so long a time in Illinois, arose from the fact of its 
being quietly acquiesced in, and not brought to the 
decision of the Courts of justice. If the question had 
ever been brought before me, as Governor of the State, 
I would not have hesitated for a moment to decide, and, 
if necessary to have enforced the decision, that slavery 



THE ORDINANCE OF 1787. 19 

did not legally exist in Illinois, and of course all held in 
service, as such, were entitled to their freedom. This 
opinion I expressed in my Inaugural Address, and in 
messages to the Legislature. 

Although the ordinance, from neglect to enforce it, 
was not made available for a considerable time, as it 
respected the French negroes held in servitude, it went 
into immediate operation from its adoption, so far as to 
exclude the further introduction of slaves into Illinois. 
No slaves were brought by those who acquired military 
lands from Virginia, or who were induced by other con- 
siderations to emigrate to the northwestern territory, 
from a conviction that they would become free under 
the Ordinance. With the exception therefore of some 
hundreds of French negroes who remained in the coun- 
try, and continued in bondage for a time in violation of 
the Ordinance, that instrument effected the object of its 
enlightened and benevolent author in excluding slave 
emigrants, and making a non-slaveholding State of Illi- 
nois, and of all the other States formed out of the 
northwestern territory. 

In addition to the causes already stated for creating 
a prejudice against the provision of the Ordinance, pro- 
hibiting slavery, many persons, particularly in Indiana 
and Illinois, had their prejudices further increased by 
their contiguity to slave-holding districts of country, 
and the opportunities furnished by this, as well as by 
the numerous emigrants who passed through them on 
their way to Missouri, to mingle and hear such re- 
presentations as were calculated to dissatisfy them with 
the prohibitory clause in the Ordinance. To this must 
be added, as a further and more powerful influence, 
the fact that the high and influential territorial officers 
were from slaveholding States, and were not only the 
advocates, but exerted their potent influence to get the 



20 THE HISTOKY OF 

prohibitory clause repealed by Congress, if possible; if 
not, to get it so modified as to admit of the holding of 
slaves, at least for a limited time. 

These various influences operated to create dissa- 
tisfaction, particularly with the partisans of the ter- 
ritorial officers, and such citizens as were interested 
in, or were under the influence of the former system 
of servitude, and of course of that class of men to be 
found everywhere, who delight in exercising the rights 
and privileges of masters. All these causes produced 
excitement, and had their effect in elections, and re- 
peatedly showed themselves in the form of petitions 
from the people and the legislatures to Congress, ask- 
ing a repeal or modification of the clause of the Ordi- 
nance prohibiting slavery. To these applications, Con- 
gress uniformly and decidedly refused its assent, and 
sustained the prohibitory clause of the Ordinance. As 
instances of this, I will state, that in March, 1803, the 
celebrated John Randolph, of Virginia, as chairman of 
a committee of the House of Representatives of Con- 
gress, to which one of these petitions was referred, asking 
the suspension of the provision in the ordinance pro- 
hibiting slavery, made a report against it, which was 
concurred in by the House. In this report the following 
strong and highly approbatory language is used in rela- 
tion to the ordinance — "That the rapid population of 
the State of Ohio sufficiently evinced, in the opinion of 
your committee, that the labor of slaves is not necessary 
to promote the growth and settlement of colonies in 
that region: That this labor, demonstrably the dearest 
of any, can only be employed to advantage in the culti- 
vation of products more valuable than any known to 
that quarter of the United States : That the committee 
deem it highly dangerous and inexpedient to impair a 
provision wisely calculated to promote the happiness 



THE ORDINANCE OF 1787. 21 

and prosperity of the northwestern country, and to give 
strength and security to that extensive frontier. In the 
salutary operation of this sagacious and benevolent re- 
straint, it is believed that the inhabitants of Indiana 
will, at no distant day, find ample remuneration for a 
temporary privation of labor and of emigration." 

In March, 1804, another report was made, on a similar 
application from Indiana, by a committee of the House, 
of which Mr. Rodney, of Delaware, was chairman, in 
which a suspension for ten years of the anti-slavery pro- 
vision was recommended, on the condition that the de- 
scendants of all such slaves should, if males, be free at 
the age of 25 years, and, if females, at the age of 21 
years. In this report the House refused to concur. In 
February, 1806, another report was made recommending 
a suspension for ten years, by a committee of which Mr. 
Garnett, of Virginia, was chairman, with a similar result — 
the non-concurrence of the House. In February, 1807, 
a committee of the House, of which Mr. Parke, Dele- 
gate from Indiana, was chairman, made still another re- 
port in favor of suspending the prohibitory clause for 
ten years, in which the House again refused to concur. 
By what majorities these disapproving votes were given, 
is not stated on the Journals of the House of Repre- 
sentatives. But in November, 1807, Mr. Franklin, of 
North Carolina, as chairman of a committee of the 
Senate of the United States, to which had been referred 
a petition from the Legislative Council and House of 
Representatives of Indiana Territory, and also a remon- 
strance against the same from the citizens of Clark 
County in said Territory, made a report against the sus- 
pension of the prohibitory clause of the ordinance, which 
was concurred in by the Senate without a dissenting 
voice. 

In alluding to these proceedings of Congress, Senator 



22 THE HISTOKY OF 

Benton, in a speech he made in the Senate of the United 
States, on the 10th of June, 1850, said — "Thus five 
times in four years the respective Houses of Congress 
refused to admit even a temporary extension or rather 
re-extension of slavery into Indiana Territory, which 
had been, before the ordinance of 1787, a slave territory, 
holding many slaves at Vincennes. These five refusals 
to suspend the ordinance of '87 were so many confirma- 
tions of it. All the rest of the action of Congress on the 
subject, was to the same effect or stronger. The Mis- 
souri Compromise line was a curtailment of slave terri- 
tory; the Texas annexation resolution was the same; 
the Ordinance of '87 itself, so often confirmed by Con- 
gress, was a curtailment of slave territory — in fact its 
actual abolition ; for it is certain that slavery existed in 
fact in the French settlement of the Illinois, at that 
time ; and that the Ordinance terminated it. I act then," 
he said, " in conformity to the long uniformly established 
policy of Congress, as well as in conformity to my own 
principles, in refusing to vote for the extension of 
slavery." 

These repeated refusals of Congress to abrogate or 
alter the clause prohibiting slavery, the most important 
of the great fundamental articles of compact, established 
by the Ordinance between the original States and those 
to be formed out of the Northwest Territory, induced 
its disappointed advocates in Indiana (then including 
Illinois), in the year 1807, to authorize by a law of the 
Territory the indenture of slaves over fifteen years of 
age, for a specified term of years. In many cases it 
was extended in practice to ninety-nine years, or for a 
term which was intended to include the life of the 
party indentured. As a slave is not competent by law 
to make an agreement or contract, he had first to be 
made free before he could enter into the indenture. 



THE ORDINANCE OF 1787. 23 

But this was made a mere matter of form, being clone 
simultaneously, and the master taking care that neither 
instrument should be valid until the other was executed. 
If a slave, after his master had signed his instrument 
of emancipation, and he was nominally free, should re- 
fuse to sign his indenture, the master had the right to 
send him out of the State, to sell him, and retain over 
him all his right as master. The indenture for a term 
equivalent to the duration of life, would not apparently 
change materially the condition of the slave ; but it 
did so in this, that his condition is always better where 
there are but few slaves, as they are then more imme- 
diately under the care and protection of their masters. 
But above all the hearts of parents, who are indentured, 
find an inexpressible pleasure and a consoling comfort 
from the knowledge of the fact that their children will 
be free ; males at thirty, and females at twenty-eight 
years of age, the times fixed by the Indiana law author- 
izing indentures. 

It may be well to add — as an incident worth men- 
tioning, particularly as showing the opinion and feel- 
ing that had their influence in bringing it about — 
the preamble to an act passed by the Legislature of 
Illinois to repeal this law of indenture, which repealing 
act was vetoed by the Territorial Governor ; in this it 
is stated that, " whereas the act of the Legislature of 
this Territory, passed the 17th of September, 1807, is 
intended to introduce and tolerate slavery, under the 
pretence of voluntary servitude, in contravention of the 
paramount law of the land ; and whereas such a system 
is calculated, in its operation, not only to prejudice the 
interest of individuals, but also, to introduce a host of 
people of color, who in time will become free, and at 
an age when they are unable to support themselves. 



24 THE HISTORY OF 

The territory consequently cannot be benefited by such 
a system, the adoption of which is contrary to the Or- 
dinance, and the feelings and wishes of the people of this 
territory." 

The same party, with the same views which led them, 
as described above, to countenance the continuance of 
the French servitude ; to petition Congress to allow them 
to introduce and hold other slaves ; and to authorize the 
introduction of negroes under indentures, induced them 
to pass a law authorizing the hiring of slaves from other 
States to labor at the salt works near Shawneetown. It 
is needless to say that all these acts were a violation, 
in form as well as in spirit, of the Ordinance of 1787. 

It is proper I should add, that the foregoing remarks 
have reference to that part of the Northwest Territory 
which is now included in the States of Indiana and 
Illinois. Although Virginia granted to her citizens 
more land for military services in the country now em- 
braced by the State of Ohio, than in any other part of the 
Territory which she ceded in 1784 to the United States, 
yet there being in the bounds of that State no such French 
population, possessed of slaves, but on the contrary its 
first settlers consisted chiefly of associations of citizens 
from non-slave holding States, who held large tracts of 
land, containing altogether many hundreds of thousands 
of acres, of which the principal were — " the Connec- 
ticut western reserve," bordering on Lake Erie ; " the 
Ohio land company," composed of citizens from the 
New England States, for land on the Ohio and Mus- 
kingum Rivers; and "Symmes and his associates" of New 
Jersey, for land on the Rivers Ohio and the Miamis. 
These and other differences, which have been pointed 
out, in the origin and character of the first settlers of 
the east and west portion of the Northwest Territory, 



THE ORDINANCE OF 1787. 25 

will explain the opposite feelings and opinions enter- 
tained by them, in relation to the clause of the Ordi- 
nance prohibiting slavery. We have seen the conduct 
of Indiana and Illinois — that of Ohio both as a Terri- 
tory and as a State, showed that she differed from them, 
and approved of the Ordinance in all its parts. To this 
it should be added that Michigan and Wisconsin, the 
remaining portions of the Northwest Territory, whose 
settlers having also chiefly emigrated from non-slave 
holding communities, both native and foreign, have 
concurred with Ohio in approving the Ordinance. Iowa, 
too, having from infancy grown up under the Ordi- 
nance, which had been extended over her by the " Mis- 
souri Compromise," and California, where slavery had 
been inhibited by the Spaniards before we acquired it, 
both of these States on coming into the Union compli- 
mented the Ordinance by adopting its peculiar lan- 
guage, and inscribing it in their constitution — " That 
neither slavery nor involuntary servitude, unless for 
punishment of crimes, shall ever be tolerated in these 
States." 

After the division of Indiana into two territorial 
governments, which took place in 1809, the eastern or 
Indiana part, not being as much under the influence of 
the pro-slavery proclivities as the western or Illinois 
portion, the contests in the former became less violent. 
This continued to diminish with the increase of popula- 
tion, which came chiefly from Ohio and the Northern 
States, until two or three years before Indiana became 
a State (in 1816), when the last great struggle took place, 
in which, although the territorial officers took an active 
part in favor of the advocates of slavery, the result wa 
so decisive and overwhelming, in favor of the anil-slavery 
party, as to have the effect of putting down the supporters 
of slavery, and an end to the slavery question in Indiana. 



26 THE HISTORY OF 

In effecting this, the most prominent and influential man 
was Jonathan Jennings, who served as a Delegate in 
Congress, and afterwards as Governor of the State. 

In Illinois, which was separated from Indiana, and 
organized first as a Territorial Government in 1809, and 
then as a State Government, and was admitted into the 
Union in 1818, the strife was continued with more or 
less violence. It was strongly displayed in the election 
of the convention to form a constitution for the new 
State, when an effort was made before the people, and 
a still greater one, in the 'Convention, to authorize the 
toleration of slavery in the State. In this its advocates 
failed, but not despairing of ultimate success, they con- 
tinued their efforts until 1822, when it was made the 
controlling question in the election of that year. And 
although I, the anti-slavery candidate, was elected 
Governor, the Legislature wanted but one member to 
have a majority of two-thirds in each House, in favor of 
submitting the question to the people whether there 
should be a convention called for altering the constitu- 
tion ; this one member was obtained in what I con- 
sider an, unprecedented manner. Thus the question 
was submitted to the people under the influence of a 
two-thirds vote of the Legislature. Under the provi- 
sions of the constitution of 1818, when two thirds of 
the members of each House of the Legislature should 
submit the question to the people, if a majority of the 
voters at the next election should be in favor of it, a 
convention was to be called to revise the constitution. 

The introduction of slavery was not openly avowed 

bv all the advocates of a convention, as the object in 

iew, but it was well known to be so, and not denied by 

many, though there were certainly other objections to 

the constitution of 1818, which had their influence in 



THE ORDINANCE OF 1787. 27 

increasing the desire for a convention to alter it. When 
this question came before the people, it produced pecu- 
liarly intense excitement always attendant on the agita- 
tion of the question of the extension of slavery ; and 
which in this case was increased by the manner in which 
it had passed the . Legislature ; and the advantage in- 
tended to be taken of a temporary inequality in the 
representation, whereby portions of the State favorable 
to slavery would have a greater influence in the conven- 
tion than they were justly entitled to. Having been 
placed in the lead, by the station assigned me, and my 
opinions and feelings being so warmly opposed to slavery 
as to make me leave my native state (Virginia), I soon 
placed my pen and exertions in requisition, and brought 
them to bear, doing all I could, personally and officially, 
to enlighten the people of Illinois, and prevent their 
making it a slave holding State. I trust I shall meet 
with indulgence from the zeal I have always felt in the 
cause, for adding, that it has ever since afforded me the 
most delightful and consoling reflections, that the abuse 
I endured, the labor I performed, and the anxiety I felt, 
were not without their reward : and to have it conceded 
by opponents as well as supporters, that I was chiefly 
instrumental in preventing a call of a convention, and 
making Illinois a slave holding State. We were sus- 
tained by a majority of about 1600 votes of the people, 
at the general election in August, 1824; and thus ter- 
minated the last struggle, the last effort of the slave 
party, to defeat the wise and philanthropic purposes of 
the Ordinance of 1787. 

It would not be doing justice to the Ordinance, nor 
would what has been written deserve the name of a 
hasty sketch of its history, were I to omit to add some of 
the repeated and unprecedented sanctions it has received 
from Congress and the American people. We have 



28 THE HISTOKY OF 

seen it was the offspring of the greatest statesman of 
our country ; and no one can fail to see in it the kin- 
dred political features of its elder brother, the Declara- 
tion of American Independence. It has been shown 
with what extraordinary unanimity it passed the old 
Congress — but one member voting against it; nor was his 
particular objection to the Ordinance known. He had 
been serving in the convention in Philadelphia from its 
commencement, and had left it not only in despair but in 
disgust, and he reached New York, and took his seat in 
Congress just in time to give his solitary vote against 
the Ordinance. But from his political character, and 
being a northern man (Mr. Yates, of the State of New 
York) , it is not unreasonable to suppose, that it did not 
arise from any objection he had to the anti-slavery pro- 
vision. On the contrary, it would be fair to presume, 
that the clause, added before its final passage, for the 
restitution of fugitive slaves, which rendered the Ordi- 
nance the more acceptable to the ultra slavery partisans 
of South Carolina and Georgia, may have made Mr. 
Yates vote against it. n 

This brings to my recollection what I was told by Mr. 
Madison, and which I do not remember ever to have 
seen in print. The Old Congress held its sessions, in 
1787, in New York, while at the same time the conven- 
tion which framed the constitution of the United States 
held its sessions in Philadelphia. Many individuals 
were members of both bodies, and thus were enabled to 
know what was passing in each — both sitting with closed 
doors and in secret sessions. The distracting question 
of slavery was agitating and retarding the labors of both, 
and led to conferences and inter-communications of the 
members, which resulted in a compromise by which the 
northern or anti-slavery portion of the country agreed 
to incorporate, into the Ordinance and Constitution, the 



THE ORDINANCE OF 1787. 29 

provision to restore fugitive slaves; and this mutual 
and concurrent action was the cause of the similarity 
of the provision contained in both, and had its influence, 
in creating the great unanimity by which the Ordinance 
passed, and also in making the constitution the more ac- 
ceptable to the slave holders. 

Among the first laws passed by the first Congress and 
approved by President Washington, August 7th, 1789, 
was one to adapt the Ordinance to the new constitution 
of the United States. It thus received the sanction of 
Congress under the present constitution, as it had pre- 
viously done of the Old Congress under the Articles of 
Confederation. 

The 7th Congress passed an act, which was approved 
by President Jefferson, April 30, 1802, authorizing 
Ohio to form a State constitution and for her admission 
into the Union ; " Provided the same shall be republican, 
and not repugnant to the Ordinance of the 13th of July, 
1787, between the original States, and the people and 
States of the territory northwest of the River Ohio." 
This was the first of the States, trained during its minority 
under the government of the Ordinance, which was ad- 
mitted at maturity into the Union ; and no doubt its 
author felt a peculiar pleasure at being then President 
of the United States, and having it in his power to use 
his influence in shaping the terms of her admission, so 
as to carry out, and perpetuate, his original purpose in 
making permanent the great fundamental provisions of 
the Ordinance, by extending them to the States, as well 
as to the Territories, to be formed out of the North- 
western Territory. 

On the 19th of April, 1816, the 14th Congress passed 
an act authorizing Indiana to form a State constitution, 
and for her admission into the Union ; and on the 1 8th 
of April, 1818, the 15th Congress passed a similar law, 



30 THE HISTORY OP 

for the admission of Illinois. Both of these acts were 
approved by President Madison, and both contained 
similar provisoes — that their constitutions when formed 
should be " republican, and not repugnant to the Ordi- 
nance of July 13, 1787." 

The 16th Congress passed an act, commonly known 
as the Missouri Compromise, authorizing the people of 
Missouri to form a constitution and State government 
" and to prohibit slavery in certain territories," approved 
by President Monroe, March 6, 1820, in which it is pro- 
vided " That in all that territory ceded by France to the 
United States, under the name of Louisiana, which lies 
north of 36° 30' north latitude not included within the 
limits of the State contemplated by this act, slavery and 
involuntary servitude, otherwise than in punishment of 
crimes, whereof the parties shall have been duly convict- 
ed, shall be, and is hereby forever prohibited : Provided 
always, that any person escaping into the same from 
whom labor or service is lawfully claimed in any State 
or Territory of the United States, such fugitive may be 
lawfully reclaimed, and conveyed to the person claiming 
his or her labor or service as aforesaid." This act, by 
using language so similar to that contained in the Ordi- 
nance, recognizes and sanctions its provisions in relation 
to slavery, and extends them to all the territory owned 
by the United States west of the River Mississippi and 
north of 36° 30', except the State of Missouri. 

By the joint Resolution annexing Texas to the United 
States, passed by the 28th Congress, and approved by 
President Tyler March 1st, 1845, it is stipulated, that 
such States as may be formed out of that portion of said 
territory lying south of 36° 30' north latitude, commonly 
known as the Missouri Compromise line, shall be ad- 
mitted into the Union with, or without slavery, as the 
people of each State, asking admission, may desire: And 



THE ORDINANCE OF 1787. 31 

in such. State or States as shall be formed out of said 
territory, north of said Missouri Compromise line, 
slavery or involuntary servitude (except for crimes) shall 
be prohibited." 

The act passed by the 30th Congress, and approved by 
President Polk, August 14, 1848, to establish a terri- 
torial government for Oregon, provides " That the in- 
habitants of said Territory shall be entitled to enjoy all 
and singular the rights, privileges, and advantages 
granted and secured to the people of the Territory of 
the United States, northwest of the Piver Ohio, by the 
articles of compact, contained in the ordinance for the 
government of said Territory, on the 13th day of July, 
1787, and shall be subject to all the conditions and restric- 
tions and prohibitions in said articles of compact imposed 
upon the people of said Territory." It cannot escape 
notice, that this, the last of the many acts of Congress 
approbatory and confirmatory of the Ordinance, should 
be most complimentary of it. The language used repre- 
sents the Ordinance as a boon by which the people of 
Oregon became entitled to enjoy all the rights, privi- 
leges and advantages which that measure granted and 
secured to the people of the Northwestern Territory. 

This statement shows that between 1787 and 1854, 
when the Missouri compromise was repealed, a period 
of sixty-seven years, eight different Congresses passed, 
and six different individuals acting as Presidents of the 
United States, viz : Washington, Jefferson, Madison, 
Monroe, Tyler, and Polk, approved eight laws of the 
United States, enacting and re-enacting, sanctioning and 
confirming and extending, as well in length of time, as 
extent of space, the ordinance of 1787. Yes — all sections 
of our extensive and diversified country, and all the 
numerous parties into which our people have been di- 
vided since our confederation was formed, have given to 



82 THE HISTORY OF 

it their approbation and sanction, and that also to a 
measure involving interests, of all others, the most excit- 
ing, and on which there has even been the greatest and 
most angry diversity of opinions. It is believed that no 
similar measure ever received such signal and repeated 
proofs of the approbation of the people, as this Ordinance 
has done. To those, who will trace the history of this 
question, it will appear marvellous, and show the pro- 
found wisdom of those who framed such an efficacious 
measure for our country. Contrast these evidences of 
approbation of the Ordinance, with those given to the 
Constitution of the United States, and it will result great- 
ly in favor of the former. It will show, if unanimity 
of opinion and repetition of legislative action can give 
weight, that the Ordinance is entitled to even more than 
the Constitution, which encountered much opposition in 
the national convention that made it, in which it received 
the signatures or votes of but thirty-nine out of fifty-five 
members who attended the convention, and was ratified 
by small majorities in many of the State conventions. 

To a cool and dispassionate observer, who has a know- 
ledge of the enlightened origin, the great popularity, 
and beneficial effects of the ordinance, it seems to be 
incredible that it should have been repealed ; and espe- 
cially denounced as violating the great principles on 
which our Government is founded. Yet such has been 
the fact, and what adds to the astonishment is, that this 
has been done by men professing to be of the Jefferson 
school of politics. The inconsistency is truly mortifying 
to those who believe, as well in the capacity of man to 
govern himself, as in the wisdom and suitability of our 
political institutions to promote, above all others, his 
happiness. 

In conclusion I will say, the wisdom, expediency, and 
salutary practical effects of the Ordinance, could not be 



THE ORDINANCE OP 1787. 33 

more clearly shown than by contrasting its operations 
with those of its substitute. Under the ordinance from 
1787 to 1854, the Territories subject to it were quiet, 
happy, and prosperous. Since its principles were repu- 
diated, in 1854, we have had nothing but contention, 
riots, and threats, if not the awful realities of civil Avar, 
which painful state of things has been brought about by 
the substitution of the legislation of 1854 for that of 
1787, long consecrated as it had been by time, and by 
the approbation of the greatest and best men of our 
country. 



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